TMI Blog2022 (7) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... Debtor. Petition dismissed. - C. P (IB) No. 1954/KB/2019 - - - Dated:- 29-6-2022 - Mr. Rohit Kapoor, Member (Judicial) And Mr. Harish Chander Suri, Member (Technical) For the Financial Creditor : Mr. Jishnu Chowdhury, Adv. Md.Dilawar Khan , Adv. Mr. Kamran Hussain , Adv For the Corporate Debtor : Mr. Sonal Shah, Adv. Mr. Aniket Chowdhury , Adv. Mr.Kushagra Shah, Adv. ORDER Per : Harish Chander Suri, Member (Technical) 1. The Court is convened by video conference today. 2. This petition under section 7 of the Insolvency and Bankruptcy Code, 2016 read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 has been filed by Janardan Prasad Mahto, through its Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which would act as Acknowledgement of Debt in this application. It is submitted that the last tranche of payment of loan was completed on 10th July, 2008 and the repayment of the entire loan had to be within 6 months. Accordingly, the last date of payment was to be made on or before, 10th January, 2009. Therefore, the date of default in the present proceedings arose on 11th January, 2009 and when the Corporate Debtor had failed to make payment, the claim of the Financial Creditor remains alive till 10th January, 2012. It is submitted that the accounts between the parties is open, running and continuous and there have been in writing by the Corporate Debtor on 14th September, 2010, 25th April, 2011, 16th April, 2014 and 16th January, 2017. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Creditor. g. Form 2 denoting the name of the proposed IRP. 7. On being served with the notice of the court, the Corporate Debtor has filed its reply affidavit. 8. In reply to the amended petition , the Corporate Debtor has submitted as under:- i. The instant application is mala fide, frivolous, abusive and a desperate attempt to eliminate the purported financial creditor s liability towards the Corporate Debtor in terms of its agreement to pay consideration for the flats that he along with his family members have booked in the various projects of the of the Corporate Debtor. ii. The applicant is not and cannot be a financial creditor and is at best a home buyer. iii. Even assuming that the purported Financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to time sought for payment of the balance consideration amount so that the deed of sale for the Shivam Plaza flat could be executed and the possession of the flat be made over. In reply to such request the Financial Creditor who along with his family members had booked flats and made payments against it had sought for adjustment of the sum of Rs.47,01,000/- paid for Shivam Plaza flat against the outstanding amount of Rs.1,25,22,000/- for the Mohan Marketing Complex Flat. ix. The Corporate Debtor was unable to do so and had by its letter dated 17th October, 2019 sought for payment of outstanding dues. The request was further renewed on 28th October, 2019 and 6th November, 2019 but the same was never replied to by the applicant. Copies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne of the Director of the Corporate Debtor took loan of Rs. 46,01,000/- from the Financial Creditor through undertaking which was given on the stamp by Mr. Niloy Kumar Jha in the capacity of the Director on behalf of the Corporate Debtor. The date of disbursement of the purported loan is not mentioned in the application nor are any terms of grant of the purported loan mentioned therein. It is further submitted that though the application in column 8 of part V mentions a purported undertaking, a perusal of the same at page 23 of the application nowhere mentions (i) the name of the Financial Creditor having granted the purported loan, (ii) the name of the Corporate Debtor purported to have taken a loan, or (iii) any term which binds the Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Authority, to be satisfied with and come to a finding that i) there is a debt; ii) default should have occurred; iii) debt should be due to financial creditor and iv) such default should by a Corporate Debtor. The Hon ble Supreme Court has in numerous judgments held that a financial creditor s application, it is necessary that whether default has been committed or not has to be first determined. (Swiss Ribbons judgment; Innoventive Industries) Judgment; The courts have come heavily on unwritten agreements and oral agreement which are incapable of establishing a financial loan. Pawan Agarwal vs. Utsav Securities (NCLAT) (CA) (AT) (Ins) No. 251 of 2050). Utsav Securities vs. Timeline Buildcon ( NCLT Delhi) CP 1559 (PB) of 2019. Prayag Pol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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